State v. Boggs , 129 W. Va. 603 ( 1946 )

I concur in the reversal of the judgment of the trial court, the setting aside of the verdict on which the said judgment was based, and in awarding to the defendant a new trial; but I am not in accord with certain holdings made, and certain opinions expressed in the majority opinion.

(1) I do not agree that the introduction of evidence by the defendant, after his motion to direct a verdict of acquittal of murder of the first or second degree, made at the end of the State's case in chief had been overruled, should be held to be a waiver of the error, if any, in the court's action on said motion. I think the defendant had a right to the full benefit of his motion, and that no prejudice should attach to his subsequent introduction of evidence to sustain his defense. I agree that the rule announced has long prevailed in civil cases and, more recently, has been extended to misdemeanor cases; but I do not think it should be further extended to cases where a felony is charged. In all felony cases either life or liberty is at stake, and a defendant should not be held to have waived any motion, or any defense merely because, when he fails as to such motion or defense, he proceeds along other and different lines. A defendant charged with a felony should have the right to make his defense, and without being required, as a condition thereof, to surrender or waive any defense interposed by him at any stage of the trial. I think, however, that in this case the point is academic, because, in my opinion, the motion aforesaid made by the defendant was properly overruled.

(2) Whether an instruction in a trial for murder to the effect that malice might be inferred, without reference to facts and circumstances calculated to rebut such inference, should be given, depends upon the evidence and circumstances of the case, and the scope of other instructions given. State v. Bailey, 103 W. Va. 605,138 S.E. 202. I do not think the jury could have been misled by the instruction on malice given in this case.

(3) I do not agree with the discussion contained in the majority opinion with respect to intent entering into the commission of a homicide, which may be either murder of the second degree or manslaughter. While perhaps not so intended, the discussion is, I fear, calculated to give rise to the belief that this Court feels that we should abandon the old and heretofore accepted idea that intent may be inferred from the acts of an accused, where a homicide has occurred, and substitute the idea that intent must be proved in some other manner. I have always understood that, as to both intent and malice, neither can be established by direct evidence, because a jury cannot read the mind of a defendant. A jury may always infer intent or malice from a defendant's acts and conduct. In both civil and criminal law, one is always held to intend the natural and probable consequence of his act. If and when we abandon these well established principles, we inject into criminal trials an element not heretofore considered susceptible of practical solution. Of course, there can be no crime without a criminal intent; but intent is inferred from acts and conduct and requires no further proof, as indeed no other proof can be secured. In State v. Morrison, 49 W. Va. 210,38 S.E. 481, it was held: "A specific intention to kill is not essential to murder in the second degree, but it is essential in murder in the first degree."

(4) I find no fault with that part of the trial Judge's charge in which he says: "The court further charges the jury that if they believe from the evidence beyond a reasonable doubt that the defendant, Aubrey Boggs, shot and killed the deceased, Thurmond Farley, with a dangerous and deadly weapon, a revolver or pistol, fired by his hand, the law is that such killing was prima facie attended with malice entering into murder, and is murder in the second degree, unless the state would elevate the offense to murder in the first degree or the defendant would reduce it to manslaughter or to justifiable killing." As I understand the law, where one person, with a deadly weapon unlawfully kills another, it is presumed to be murder of the second degree. I do not believe that the language "the law is that such killing was prima facie attended with malice entering into murder" conveys any different meaning than if the court had said "the law is that such killing is murder of the second degree", and if he had so stated, the instruction would have been proper, because in the same instruction he adds the qualifying clause which would have permitted the defendant to reduce the offense to manslaughter or justifiable killing.

(5) I think the giving of that part of the court's charge which contains the language: "* * * if the killing is done though without legal provocation, upon a sudden falling out, but with an instrument not likely to produce death, the jury may infer a want of malice, so that it would be regarded as a voluntary manslaughter; but, if it was done with a deadly weapon it would be murder; the weapon used being controlling as to the intent and malicious motive. Wherefore, a provocation must be measured by the means employed to resent it", was error. I would not find fault with that part of the instruction which refers to a "sudden falling out", and the use of an instrument not likely to produce death, which "sudden falling out" is connected with voluntary manslaughter and second degree murder, had the court said that if, on such "sudden falling out" a killing occurred through the use of a deadly weapon, it would be presumed to be murder of the second degree. I think that, under our statute and our decisions, unlawful homicide following a sudden falling out, if committed with a deadly weapon, is presumed to be murder of the second degree; and the elements of "sudden falling out" or "hot blood" constitute a defense, which would warrant a jury in reducing a defendant's guilt to voluntary manslaughter or some lesser offense, or to find that the act was justifiable. However, the court did not use such language or its equivalent in his charge, but said, "but, if it was done with a deadly weapon it would be murder." There is a wide difference between saying that a particular act would be murder and saying it would, under the law, be presumed to be murder of the second degree. Presumptions may be overcome, and a defendant should not be deprived of the right to have a jury pass upon the question whether the presumption against him of murder of the second degree should be sustained or overcome. For these reasons, I concur in the opinion prepared by Judge Riley on this point of the case.

(6) I concur also in point 4 of the syllabus which states: "The court's refusal to incorporate in its charge in a trial for murder an instruction bearing on the presumption of innocence in defendant's favor constitutes prejudicial error." In my opinion, when a defendant asks that the jury be instructed on the question of presumption of innocence, as was done in this case, it becomes the duty of the court to include in his charge the substance of such an instruction. The question may arise whether failure to give such instruction is prejudicial error, in view of the fact that, in this case, the court's charge told the jury that the indictment was not to be considered as evidence against the defendant, and that before convicting defendant they must believe him to be guilty beyond all reasonable doubt, thus placing upon the State the heavy burden of showing defendant's guilt. But over a long period of time, reaching beyond the memory of any member of this Court, the principle that a defendant, in a criminal trial, is presumed to be innocent, and that this presumption follows him through every stage of his trial, is so imbedded in our system of criminal law, that I can see no reason why we should now depart from it. I do not think it would be error in a trial court to fail to give such an instruction, when not asked to do so; but when request therefor is made, I think an instruction along that line should be given.

Judge Lovins concurs in the foregoing note.